The future of the Bar – Condensed through the eyes of a Dere Street Barrister

Monthly Archives: March 2013

Michael Atherton, a 42 year old taxi driver with no previous criminal convictions, shot and killed his 47 year old partner Susan McGoldrick, her sister Alison Turnbull, and her 24 year old daughter Tanya Turnbull on New Year’s Day 2012, before shooting himself in the head.

Atherton, who was authorised to hold six weapons – three shotguns and three rifled firearms – had an ordinary history. He was a keen angler and took up shooting as a sport. He had been involved in four incidents of domestic conflict dating back to April 2004, and his weapons were removed in September 2008 when in a drunken state it was said that he “threatened to shoot his head off”. This he subsequently denied. He was never charged. His guns were returned to him six weeks later on the proviso that he behaved responsibly. There was no ‘meaningful review’ of his suitability as a certificate holder.

The press and public are now reeling following Durham Coroner, Andrew Tweddle’s careful scrutiny at Crook Civic Centre in the inquest into the deaths that concluded today.

Deputy Chief Constable of Durham Michael Banks was both contrite and realistic about the force’s flawed decision and decision-making process. Independent Police Complaints Commission spokesman Nicholas Long said: “Not only did the IPCC investigation uncover a wanton lack of intrusive inquiries by Durham Constabulary, it also identified poor practices which reflect woeful record keeping”. “While some of the failings were down to individuals, the underlying issue was Durham Constabulary’s lack of adequate systems and safeguards.”

On BBC Radio 4 PM programme, Simon Clarke of the British Association for Shooting and Conservation placed the responsibility for the incident on Durham Police for not revoking Atherton’s licence and certification, speaking of “their abject failure” and “breaking the bond of trust with the public”. He spoke of “a failure of policy, guidance and procedure”. Clarke recommended that a centralised, specialist authority should replace the current decision making process of the 43 separate police authorities – to administer licensing in a “clear, and most importantly, a consistent way”.

The question remains whether the gun lobby is right in seeing the issue as one of ‘interpretation‘ of existing gun law – or whether we should now be looking at root and branch changes to it?

Getting a gun certificate

The application form asks specific questions about why you want a gun.

The form requires the applicant to show “good reason” for wanting a gun.

The criteria are less tough for shotguns than for firearms which must only be used for specific purposes in specific places, including deer stalking or sports shooting on an approved range.

Independent referees provide confidential character statements in which they answer questions about the applicant’s mental state, home life and attitude towards guns.

Officers check the applicant for a criminal record and speak to the applicant’s GP for evidence of alcoholism, drug abuse or signs of personality disorder.

The certificating authority must be satisfied that prospective shotgun holders have a secure location in which to keep the guns, typically a dedicated gun cabinet.

Each certificate is valid for five years.

Whilst the firearms legislation in England and Wales was amended in 1997 following the Dunblane enquiry (see my previous posting in December), the fundamental policy with regard to the holding of firearms and shotguns has remained unchanged since 1968.

Under the Firearms Act 1968, two main categories of weapons are defined: firearms (other than shotguns), and shotguns.

S.1 of the Firearms Act 1968 makes it an offence to ‘possess, purchase or acquire’ a firearm without a firearms certificate. The criteria for determining whether an individual is to be deemed suitable is not defined. S.38 of the Firearms (Amendment) Act 1997 sets out some parameters, namely ‘fit to be entrusted’, ‘good reason for possession’ and ‘possession without danger to the public safety or the peace’. It is then for the individual licensing officers within the 43 police authorities to interpret the criteria.

The criteria for granting a shotgun certificate is less strict. Here, so long as the applicant is not a prohibited person, the only test is that of ‘danger to the public safety or the peace’. The issues of fitness to be entrusted, and good reason for possession are not considered.

Hidden away in s.11(5) of the 1968 Act a person may, without holding a shotgun certificate, borrow a shotgun form the occupier of private premises and use it on those premises in the occupier’s presence’. In layman’s terms, this means that a totally unauthorised and unsuitable person may have legitimate access to and use of a shotgun in circumstances where the only control is the ‘presence’ of the certificate holder.

Way forward

The historic reasons for differentiating ‘fireams’ and ‘shotguns’ made sense in 1968, and perhaps even in 1997. Then the legitimate use of shotguns compared with the numbers of shotguns out in the community and the circumstances of their use placed them in a different category. Is this now still the case? Should the tests for grant of certification today remain different?

More importantly, is the fundamental test for a grant of a certificate (whether for firearm or shotgun) still appropriate?

Right as opposed to privilege

S.38(1) of the 1997 Act requires the chief officer of police to grant a firearms certificate unless the criteria (see above) are not met. This legislates for a qualified ‘right’ to possess a firearm. Likewise S.28 1968 Act states that a shotgun certificate ‘shall be granted‘ unless the applicant fails the two tests.

Not condoning the failures of the Durham Police firearms regime in 2008; with 7 years of unflawed experience of firearms regulation for another police authority, I have some sympathy for them. At what stage will – and more appositely then would – a court be persuaded to ‘remove a right’ to possess a firearm or shotgun?

Having conducted or advised in 31 appeals on behalf of both appellants and police authorities, I cannot be so sure as Mark Groothuis (firearms advisor), that had Atherton’s certificate been revoked in 2008, an appeal by him would not have been successful. Much water has ‘passed under the bridge’ since 2008.

Now is the time for the public and commentators alike to question ‘the right‘ of individuals to hold weapons. The burden should not be on the police to prove that an applicant is unsuitable for any reason, and that the ‘right’ should be removed; but should be fair-square on the applicant to demonstrate their suitability. The ‘right’ to possess a weapon should be replaced by the ‘privilege’ of ownership.

Only then will the public have the level of protection from the ‘Athertons’, the ‘Hamiltons’ and the ‘Lanzas’ that it deserves.

Since leaving the Metropolitan Police Service after a short but highly decorated police career, Stephen Twist has kept a close professional network with police services and police officers throughout the county. He advises constabularies on professional conduct issues, administrative law matters, licensing (liquor and firearms) and a range of other topics such as data protection and human rights. He is best known in relation to police misconduct cases where Stephen advises and represents both Complaints and Professional Standards Departments and individual police officers. He has had involvement in some of the most serious, sensitive and difficult police misconduct cases in the North of England. He sits as an independent legal adviser to police misconduct panels.

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Thank you for visiting the blog. Originally celebrating Stephen Twist's move to Dere Street Barristers on the merger of York and Broad Chare Chambers, the blog now encourages general discussion of the many changes that face the legal profession, and in particular, the Bar.
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